The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations. Employment is of a temporary nature when the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.

H-2A

​Program

Program Overview

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The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above the necessary for ongoing operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.

Before the U.S. Citizenship and Immigration Services (USCIS) can approve an employer's petition for such workers, the employer must file an application with the Department stating that: (1) there are not sufficient able, willing, and qualified United States (U.S.) workers available to perform the temporary and seasonal agricultural employment for which an employer desires to import nonimmigrant foreign workers; and (2) employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The statute and Departmental regulations provide for numerous worker protections and employer requirements with respect to wages and working conditions that do not apply to nonagricultural programs. The Department's Wage and Hour Division (WHD) has responsibility for enforcing provisions of worker contracts.

Qualifying Criteria

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The following general categories of individuals or organizations may file an application:​

An agricultural employer who anticipates a shortage of U.S. workers needed to perform agricultural labor or services of a temporary or seasonal nature may file an application requesting temporary foreign agricultural labor certification. "Temporary or seasonal nature" means employment performed at certain seasons of the year, usually in relation to the production and/or harvesting of a crop, or for a limited time period of less than one year when an employer can show that the need for the foreign worker(s) is truly temporary.

The employer may be an individual, partnership, association, corporation, cooperative, firm, joint stock company, trust, or other organization with legal rights and duties) that:

Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;

Has an employer relationship (such as the ability to hire, pay, fire, supervise, or otherwise control the work of employees) with respect to an H-2A worker or a worker in corresponding employment; and

Possesses a valid Federal Employer Identification Number (FEIN)

An association of employer producers may file as a sole employer, a joint employer with its members, or as an agent of its members. Associations filing as a joint employer with its employer-members may file master applications on behalf of their members. A farm labor contractor who meets the definition of an employer and is not a fixed-site employer or agricultural association may file an application for temporary foreign workers as an "H-2A Labor Contractor" (H-2ALC).

In circumstances where an authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), the agent may file an application on behalf of an employer along with documentation which demonstrates that the agent is authorized to represent the employer.

Filing Process

What Step Do I Take Before Filing an H-2A Application?

Prior to filing an Application for Temporary Employment Certification, the employer must prepare a job offer on the ETA Form 790 - Agricultural and Food Processing Clearance Order and submit the form and all attachments to the State Workforce Agency (SWA) serving the area of intended employment for intrastate clearance. The following requirements must be met:

The job order must be submitted to the SWA no more than 75 calendar days and no fewer than 60 calendar days before the start date of the job;

The job order must be identified as one that will be used in connection with a future filed Application for Temporary Employment Certification (ETA Form 9142A) with the U.S. Department of Labor; and

The contents of the job order must satisfy the requirements of 20 CFR part 653, subpart F and 20 CFR 655.122.

If the job opportunity is located in more than one State within the same area of intended employment, the employer may submit a job order to any one of the SWAs which has jurisdiction over the anticipated worksites. Where the job order is being placed in connection with a future master application to be filed by an association of agricultural employers as a joint employer, the association may submit a single job order to be placed in the name of the association on behalf of all employers that will be duly named on the future filed ETA Form 9142A.

Upon receipt of the job order, the SWA will review the job order and notify the employer in writing of deficiencies in the job order no later than seven (7) calendar days after it has been submitted. The employer must respond to the SWA within five (5) calendar days after receipt of the SWA notification. The SWA must respond to the employer's response within three (3) calendar days. Once accepted by the SWA, the job order will be active until the end of the recruitment period, which will extend through 50 percent of the period of employment.

Additional filing requirements for H-2A Labor Contractors (H-2ALC)

An application filed by an H-2ALC must be limited to a single area of intended employment in which the fixed-site employer(s) to whom an H-2ALC is furnishing employees will be utilizing the employees. An H-2ALC must include the following information in its application:

Name and location of each fixed-site agricultural business to which the H-2ALC expects to provide H-2A workers, the expected beginning and ending dates when the H-2ALC will be providing the workers to each fixed site, and a description of the crops and activities the workers are expected to perform at such fixed site;

A copy of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor (FLC) Certificate of Registration, if required, identifying the specific farm labor contracting activities the H-2ALC is authorized to perform as an FLC;

Proof of its ability to discharge financial obligations under the H-2A program by including a surety bond under original signature. The bond document must clearly identify the issuer, the name, address, phone number, and contact person for the surety, and provide the amount of the bond and any identifying designation used by the surety for the bond;

Copies of the fully-executed work contracts with each fixed-site agricultural business; and

Where the fixed-site agricultural business will provide housing or transportation to the workers, proof that all housing used by workers and owned, operated or secured by the fixed-site agricultural business complies with the standards of the H-2A program and certified by the SWA and all transportation between the worksite and the workers' living quarters that is provided by the fixed-site agricultural business complies with all applicable Federal, State, or local laws and regulation.

Additional filing requirements for agents - An agent filing an application on behalf of an employer must provide a copy of the agent agreement or other document demonstrating the agent's authority to represent the employer. In addition, the agent must provide a copy of the MSPA FLC Certificate of Registration, if required by MSPA, identifying the specific farm labor contracting activities the agent is authorized to perform.

When Can I File the H-2A Application Package?

A complete application package must be filed with and received by the ETA Chicago NPC at least forty-five (45) calendar days before the first date on which workers are needed. Employer may not file with the ETA Chicago NPC until after the job order has been submitted to and reviewed by the SWA in accordance with the regulatory timeframe (i.e., no more than 75 days and no less than 60 days before the anticipated start date of work).​

What will happen after I submit an H-2A application?

The ETA Chicago NPC will review an employer's application promptly. Normally, within seven (7) calendar days after receipt of an application, the ETA Chicago NPC will notify the employer in writing of the decision to accept or reject the employer's application. Copies of the notification will be sent to the employer and, if applicable, the employer's attorney or agent by means normally assuring next day delivery. If the initial application is accepted or amended within the required time frame and complies with the regulations, the ETA Chicago NPC will make a certification determination thirty (30) calendar days before the date on which the workers are needed.

Recruitment of U.S. Workers

After an employer's application is accepted for processing, the Chicago NPC will require the employer to independently engage in specific positive recruitment efforts within a multi-state region of traditional or expected labor supply if the Chicago NPC determines there is a sufficient supply of labor to be recruited.

The employer must place an advertisement on two (2) separate days, which may be consecutive, one of which must be on a Sunday in a newspaper of general circulation serving the area of intended employment and is appropriate to the occupation and the workers likely to apply for the job opportunity. All advertising must contain the following information:

The employer's name (if an association, a statement indicating that the name and location of each member of the association can be obtained from the SWA);

The geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor;

A description of the job opportunity with sufficient information to apprise U.S. workers of services or labor to be performed and the anticipated start and end dates of employment;

The wage offer(s);

The three-fourths guarantee;

If applicable, a statement that work tools, supplies, and equipment will be provided at no cost to the worker;

A statement that housing will be made available at no cost to the worker;

A statement that transportation and subsistence expenses to the worksite will be provided by the employer or paid by the employer upon completion of 50 percent of the work contract, or earlier, if appropriate;

A statement that the position is temporary and a specification of the total number of job openings the employer intends to fill;

A statement directing applicants to apply for the job opportunity at the nearest office of the SWA.; and

Contact information for the applicable SWA and, if available, the job order number.

The employer must contact, by mail or other effective means, its former U.S. workers employed by the employer in the occupation at the place of employment during the previous year and solicit their return to the job.

The employer must conduct positive recruitment within a multistate region of traditional or expected labor supply where the CO finds that there are a significant number of qualified U.S. workers who, if recruited, would be willing to make themselves available for work at the time and place needed.

The employer must also prepare, sign, and date a written recruitment report. The recruitment report must be submitted on the date specified in the employer's Notice of Acceptance and contain the following information:

Identify the name of each recruitment source;

State the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the recruitment report, and the disposition of each worker;

Confirm that former U.S. employees were contacted and by what means; and

If applicable, for each U.S. worker who applied for the position but was not hired, explain the lawful job-related reason(s) for not hiring the U.S. worker.

The employer must continue to maintain the recruitment report throughout the entire period of recruitment until 50 percent of the period of the work contract has elapsed.

Violations, Penalties, Sanctions

The Wage and Hour Division (WHD) of the Department has a primary role in investigating and enforcing the terms and conditions of employment. WHD is responsible for enforcing the contractual obligations employers have toward employees, and may assess civil money penalties and recover unpaid wages. Administrative proceedings and/or injunctive actions through federal courts may be instituted to compel compliance with an employer's contractual obligations to employees.

The Employment and Training Administration (ETA) enforces other aspects of the laws and regulations. ETA is responsible for administering sanctions relating to substantial violations of the regulations (denial of certification for up to three years) and less than substantial violations of the regulations (reductions of one-fourth of job opportunities certified).

Documentation Retention Requirements

All employers filing H-2A applications must retain the following documentation:

Proof of recruitment efforts including:

Job order placement

Advertising

Contact with former U.S. workers

Additional positive recruitment efforts

Substantiation of information submitted in the recruitment report

The final recruitment report and any supporting resumes and contact information

Proof of workers' compensation insurance or State law coverage

Records of each worker's earnings

The work contract or copy of the Application for Temporary Employment Certification

An association must retain the additional documentation required for submission of its application

The records and documents must be retained for a period of three (3) years from the date of certification, or from the date of the determination if the application is denied or withdrawn. Documents must be produced to the Department upon request.

For a the complete details on the H-2A program please click here to review the details on the Department of Labor's Website.